Alston v. Sebelius et al

Filing 56

ORDER ADOPTING REPORT AND RECOMMENDATIONS: SO ORDERED that Magistrate Judge Lindsay's Report is accepted in its entirety and the amended complaint is dismissed in its entirety with prejudice pursuant to Rules 12(b)(l) and 12(b)(6) of the Federa l Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim for relief. The Clerk of the Court shall close this case and, pursuant to Rule 77(d)(l) of the Federal Rules of Civil Procedure, serve notice of entry of this Order upon all parties as provided in Rule 5(b) of the Federal Rules of Civil Procedure and record such service on the docket. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any appeal. CM to pro se plaintiff via ecf/nef. Ordered by Judge Sandra J. Feuerstein on 9/2/2014. (Florio, Lisa)

FILED
IN CLERK'S OFFICE
U S DISTRICT COURT E 0 N y

*

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""")(

SEP 02 2014

LONG ISLAND OFFIC£

ORLANDO ALSTON, et al.,
Plaintiffs,
ORDER
13-CV-4537(SJF)(ARL)

-againstKATHLEEN SEBELIUS, HHS Secretary, et al.,
Defendants.
""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""""")(

FEUERSTEIN, District Judge:
Pending before the Court is the Report and Recommendation ("the Report") of the
Honorable Arlene R. Lindsay, United States Magistrate Judge, dated July 31, 2014: (1)
recommending, inter alia, (a) that the defendants' motions to dismiss the amended complaint
pursuant to Rules 12(b)(1) and 12(b)(6) ofthe Federal Rules of Civil Procedure for lack of subject
matter jurisdiction and failure to state a claim for relief be granted, and (b) that the application of
plaintiff Orlando Alston ("plaintiff') for leave to amend the amended complaint be denied; and (2)
advising plaintiff (a) that "[a]ny objections to th[e] Report • • • must be electronically filed with the
Clerk of the Court within 14 days of service[,]" (Report at 35), and (b) that a "[f]ailure to file
objections within th[e] [fourteen (14) day] period waives the right to appeal the District Court's
Order[,]"@,) (citing 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72; Beverly v. Walker, 118 F.3d 900,
902 (2d Cir. 1997); and Savoie v. Merchants Bank, 84 F.3d 52,60 (2d Cir. 1996)). The Court served
a copy of the Report upon plaintiff by express mail on July 31, 2014. (Doc. No. 55). Plaintiff has
not filed any objections to the Report, nor sought an extension of time to do so. For the reasons
stated herein and in the Report, Magistrate Judge Lindsay's Report is accepted in its entirety and the
amended complaint is dismissed in its entirety pursuant to Rules 12(b)(l) and 12(b)(6) of the Federal
Rules of Civil Procedure for lack of subject matter jurisdiction and failure to state a claim for relief.

1

*

/

•
I.

Standard of Review
Any party may serve and file written objections to a report and recommendation of a

magistrate judge on a dispositive matter within fourteen (14) days after being served with a copy
thereof. 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(2). Any portion of such a report and
recommendation to which a timely objection has been made is reviewed de novo. 28 U.S.C. §
636(b)(l); Fed. R. Civ. P. 72(b)(3). The court, however, is not required to review the factual
findings or legal conclusions of the magistrate judge as to which no proper objections are interposed.
See Thomas v. Am. 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Specifically, where,
as here, a party "received clear notice of the consequences of the failure to object" to a report and
recommendation on a dispositive matter, Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992)
(quotations and citation omitted), his "failure to object timely to [that] report waives any further
judicial review of the report." Id.; see also Caidor v. Onondago Countv, 517 F.3d 601, 604 (2d Cir.
2008); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. !993).
"Although this rule applies equally to counseled and prose litigants, it is 'a nonjurisdictional
waiver provision whose violation [the Court] may excuse in the interests of justice."' King v. City of
New York. Department of Corrections, 419 F. App'x 25,27 (2d Cir. Apr. 4, 201 I) (quoting Roldan,
984 F.2d at 89); see also DeLeon v. Strack, 234 F.3d 84, 86 (2d Cir. 2000). "Such discretion is
exercised based on, among other factors, whether the defaulted argument has substantial merit or,
put otherwise, whether the magistrate judge committed plain error in ruling against the defaulting
party." Spence v. Superintendent. Great Meadow Correctional Facility, 219 F.3d 162, 174 (2d Cir.
2000); ~also King, 419 F. App'x at 27 (accord).

II.

Review of Report
Although the Report provided plaintiff with the requisite "express warning" of the

consequences of a failure to timely file objections thereto, Caidor, 5 I 7 F.3d at 603, plaintiff has not
filed any objections to Magistrate Judge Lindsay's Report, nor sought an extension of time to do so.

2

Accordingly, plaintiff has "waive[d) any further judicial review of the findings contained in the
report." Soence, 219 F.3d at 174. Moreover, as the Report is not plainly erroneous, the Court will
not exercise its discretion to excuse plaintiffs default in filing timely objections to the Report in the
interests of justice. Accordingly, the Report is accepted in its entirety and the amended complaint is
dismissed in its entirety pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil
Procedure for lack of subject matter jurisdiction and failure to state a claim for relief.

III.

Conclusion
For the reasons set forth herein and in the Report, Magistrate Judge Lindsay's Report is

accepted in its entirety and the amended complaint is dismissed in its entirety with prejudice
pursuant to Rules 12(b)(l) and 12(b)(6) of the Federal Rules of Civil Procedure for lack of subject
matter jurisdiction and failure to state a claim for relief. The Clerk of the Court shall close this case
and, pursuant to Rule 77(d)(l) of the Federal Rules of Civil Procedure, serve notice of entry of this
Order upon all parties as provided in Rule 5(b) of the Federal Rules of Civil Procedure and record
such service on the docket.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this Order would
not be taken in good faith and therefore in forma pauperis status is denied for the purpose of any
appeal. See Coppedge v. United States, 369 U.S. 438,444-45,82 S. Ct. 917,8 L. Ed. 2d 21 (1962).

SO ORDERED.

s/ Sandra J. Feuerstein
Saldra J. FeuerUin
United States District Judge

Dated: September 2, 2014
Central Islip, New York

3